H.B. 343

1

UNDERGROUND STORAGE TANK AMENDMENTS
2 2012 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Kay L. McIff
5 Senate Sponsor: Kevin T. Van Tassell
6
7 LONG TITLE
8 General Description:
9 This bill modifies certain requirements relating to the Petroleum Storage Tank Trust
10 Fund.
11 Highlighted Provisions:
12 This bill:
13 . modifies the definition of "certified underground storage tank consultant";
14 . grants rulemaking authority relating to the registration of underground storage tank
15 operators;
16 . provides for the identification of underground storage tanks that do not qualify for a
17 certificate of compliance; and
18 . makes technical changes.
19 Money Appropriated in this Bill:
20 None
21 Other Special Clauses:
22 None
23 Utah Code Sections Affected:
24 AMENDS:
25 19-6-402, as last amended by Laws of Utah 2010, Chapter 324
26 19-6-403, as last amended by Laws of Utah 2008, Chapters 56 and 382
27 19-6-405.3, as last amended by Laws of Utah 2010, Chapter 186

28 19-6-411, as last amended by Laws of Utah 1998, Chapter 95
29
30 Be it enacted by the Legislature of the state of Utah:
31 Section 1. Section 19-6-402 is amended to read:
32 19-6-402. Definitions.
33 As used in this part:
34 (1) "Abatement action" means action taken to limit, reduce, mitigate, or eliminate:
35 (a) a release from an underground storage tank or petroleum storage tank[,]; or [to limit
36 or reduce, mitigate, or eliminate]
37 (b) the damage caused by that release.
38 (2) "Board" means the Solid and Hazardous Waste Control Board created in Section
39 19-1-106 .
40 (3) "Bodily injury" means bodily harm, sickness, disease, or death sustained by [any] a
41 person.
42 (4) "Certificate of compliance" means a certificate issued to a facility by the executive
43 secretary:
44 (a) demonstrating that an owner or operator of a facility containing one or more
45 petroleum storage tanks has met the requirements of this part; and
46 (b) listing all tanks at the facility, specifying:
47 (i) which tanks may receive petroleum; and
48 (ii) which tanks have not met the requirements for compliance.
49 (5) "Certificate of registration" means a certificate issued to a facility by the executive
50 secretary demonstrating that an owner or operator of a facility containing one or more
51 underground storage tanks has:
52 (a) registered the tanks; and
53 (b) paid the annual underground storage tank fee.
54 (6) (a) "Certified underground storage tank consultant" means [any] a person who:
55 (i) [meets the education and experience standards established by the board under
56 Subsection 19-6-403 (1)(a)(vi) in order to provide or contract] for a fee, or in connection with
57 services for which a fee is charged, provides or contracts to provide information, opinions, or
58 advice relating to underground storage tank release:

59 (A) management[, release];
60 (B) abatement[,];
61 (C) investigation[,];
62 (D) corrective action[,]; or
63 (E) evaluation [for a fee, or in connection with the services for which a fee is charged;
64 and];
65 (ii) has submitted an application to the board [and];
66 (iii) received a written statement of certification from the board[.]; and
67 (iv) meets the education and experience standards established by the board under
68 Subsection 19-6-403 (1)(a)(vii).
69 (b) "Certified underground storage tank consultant" does not include:
70 (i) (A) an employee of the owner or operator of the underground storage tank[,]; or
71 (B) an employee of a business operation that has a business relationship with the owner
72 or operator of the underground storage tank, and [that] markets petroleum products or manages
73 underground storage tanks; or
74 (ii) [persons] a person licensed to practice law in this state who [offer] offers only legal
75 advice on underground storage tank release:
76 (A) management[, release];
77 (B) abatement[,];
78 (C) investigation[,];
79 (D) corrective action[,]; or
80 (E) evaluation.
81 (7) "Closed" means an underground storage tank no longer in use that has been:
82 (a) emptied and cleaned to remove all liquids and accumulated sludges; and
83 (b) (i) [either] removed from the ground; or
84 (ii) filled with an inert solid material.
85 (8) "Corrective action plan" means a plan for correcting a release from a petroleum
86 storage tank that includes provisions for [all or] any of the following:
87 (a) cleanup or removal of the release;
88 (b) containment or isolation of the release;
89 (c) treatment of the release;

90 (d) correction of the cause of the release;
91 (e) monitoring and maintenance of the site of the release;
92 (f) provision of alternative water supplies to [persons] a person whose drinking water
93 has become contaminated by the release; or
94 (g) temporary or permanent relocation, whichever is determined by the executive
95 secretary to be more cost-effective, of [persons] a person whose [dwellings have] dwelling has
96 been determined by the executive secretary to be no longer habitable due to the release.
97 (9) "Costs" means [any] money expended for:
98 (a) investigation;
99 (b) abatement action;
100 (c) corrective action;
101 (d) judgments, awards, and settlements for bodily injury or property damage to third
102 parties;
103 (e) legal and claims adjusting costs incurred by the state in connection with judgments,
104 awards, or settlements for bodily injury or property damage to third parties; or
105 (f) costs incurred by the state risk manager in determining the actuarial soundness of
106 the fund.
107 (10) "Covered by the fund" means the requirements of Section 19-6-424 have been
108 met.
109 (11) "Dwelling" means a building that is usually occupied by a person lodging there at
110 night.
111 (12) "Enforcement proceedings" means a civil action or the procedures to enforce
112 orders established by Section 19-6-425 .
113 (13) "Executive secretary" means the executive secretary of the board.
114 (14) "Facility" means all underground storage tanks located on a single parcel of
115 property or on any property adjacent or contiguous to that parcel.
116 (15) "Fund" means the Petroleum Storage Tank Trust Fund created in Section
117 19-6-409 .
118 (16) "Loan fund" means the Petroleum Storage Tank Loan Fund created in Section
119 19-6-405.3 .
120 (17) "Operator" means [any] a person in control of or who is responsible on a daily

121 basis for the maintenance of an underground storage tank that is in use for the storage, use, or
122 dispensing of a regulated substance.
123 (18) "Owner" means:
124 (a) in the case of an underground storage tank in use on or after November 8, 1984,
125 [any] a person who owns an underground storage tank used for the storage, use, or dispensing
126 of a regulated substance; and
127 (b) in the case of [any] an underground storage tank in use before November 8, 1984,
128 but not in use on or after November 8, 1984, [any] a person who owned the tank immediately
129 before the discontinuance of its use for the storage, use, or dispensing of a regulated substance.
130 (19) "Petroleum" includes crude oil or [any] a fraction of crude oil that is liquid at:
131 (a) 60 degrees Fahrenheit; and [at]
132 (b) a pressure of 14.7 pounds per square inch absolute.
133 (20) "Petroleum storage tank" means a tank that:
134 (a) (i) is underground;
135 (ii) is regulated under Subtitle I of the Resource Conservation and Recovery Act, 42
136 U.S.C. Section 6991c, et seq.; and
137 (iii) contains petroleum; or
138 (b) [is a tank that] the owner or operator voluntarily submits for participation in the
139 Petroleum Storage Tank Trust Fund under Section 19-6-415 .
140 (21) "Petroleum Storage Tank Restricted Account" means the account created in
141 Section 19-6-405.5 .
142 (22) "Program" means the Environmental Assurance Program under Section
143 19-6-410.5 .
144 (23) "Property damage" means physical injury to [or], destruction of, or loss of use of
145 tangible property [including loss of use of that property].
146 (24) (a) "Regulated substance" means petroleum and petroleum-based substances
147 comprised of a complex blend of hydrocarbons derived from crude oil through processes of
148 separation, conversion, upgrading, and finishing[, and].
149 (b) "Regulated substance" includes motor fuels, jet fuels, distillate fuel oils, residual
150 fuel oils, lubricants, petroleum solvents, and used oils.
151 (25) (a) "Release" means [any] spilling, leaking, emitting, discharging, escaping,

152 leaching, or disposing a regulated substance from an underground storage tank or petroleum
153 storage tank. [The entire release is]
154 (b) A release of a regulated substance from an underground storage tank or petroleum
155 storage tank is considered a single release from that tank system.
156 (26) (a) "Responsible party" means [any] a person who:
157 (i) is the owner or operator of a facility;
158 (ii) owns or has legal or equitable title in a facility or an underground storage tank;
159 (iii) owned or had legal or equitable title in [the] a facility at the time [any] petroleum
160 was received or contained at the facility;
161 (iv) operated or otherwise controlled activities at [the] a facility at the time [any]
162 petroleum was received or contained at the facility; or
163 (v) is an underground storage tank installation company.
164 (b) "Responsible party" as defined in Subsections (26)(a)(i), (ii), and (iii) does not
165 include:
166 (i) [any] a person who is not an operator and, without participating in the management
167 of a facility and otherwise not engaged in petroleum production, refining, and marketing, holds
168 indicia of ownership:
169 (A) primarily to protect his security interest in the facility; or
170 (B) as a fiduciary or custodian under Title 75, Utah Uniform Probate Code, or under an
171 employee benefit plan; or
172 (ii) governmental ownership or control of property by involuntary transfers as provided
173 in CERCLA Section 101(20)(D), 42 U.S.C. Sec. 9601(20)(D).
174 (c) The exemption created by Subsection (26)(b)(i)(B) does not apply to actions taken
175 by the state or its officials or agencies under this part.
176 (d) The terms and activities "indicia of ownership," "primarily to protect a security
177 interest," "participation in management," and "security interest" under this part are in
178 accordance with 40 CFR Part 280, Subpart I, as amended, and 42 U.S.C. Sec. 6991b(h)(9).
179 (e) The terms "participate in management" and "indicia of ownership" as defined in 40
180 CFR Part 280, Subpart I, as amended, and 42 U.S.C. Sec. 6991b(h)(9) include and apply to the
181 fiduciaries listed in Subsection (26)(b)(i)(B).
182 (27) "Soil test" means a test, established or approved by board rule, to detect the

183 presence of petroleum in soil.
184 (28) "State cleanup appropriation" means [the] money appropriated by the Legislature
185 to the department to fund the investigation, abatement, and corrective action regarding releases
186 not covered by the fund.
187 (29) "Underground storage tank" means [any] a tank regulated under Subtitle I,
188 Resource Conservation and Recovery Act, 42 U.S.C. Sec. 6991c, et seq., including:
189 (a) a petroleum storage tank;
190 (b) underground pipes and lines connected to a storage tank; and
191 (c) [any] an underground ancillary equipment and containment system.
192 (30) "Underground storage tank installation company" means [any] a person, firm,
193 partnership, corporation, governmental entity, association, or other organization who installs
194 underground storage tanks.
195 (31) "Underground storage tank installation company permit" means a permit issued to
196 an underground storage tank installation company by the executive secretary.
197 (32) "Underground storage tank technician" means a person employed by and acting
198 under the direct supervision of a certified underground storage tank consultant to assist in
199 carrying out the functions described in Subsection (6)(a).
200 Section 2. Section 19-6-403 is amended to read:
201 19-6-403. Powers and duties of board.
202 The board shall regulate an underground storage tank or petroleum storage tank by:
203 (1) in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
204 making rules that:
205 (a) provide for the:
206 (i) certification of an underground storage tank installer, inspector, tester, or remover;
207 (ii) registration of an underground storage tank operator;
208 [(ii)] (iii) registration of [a] an underground storage tank;
209 [(iii)] (iv) administration of the petroleum storage tank program;
210 [(iv)] (v) format of, and required information in, a record kept by [a] an underground
211 storage or petroleum storage tank owner or operator who is participating in the fund;
212 [(v)] (vi) voluntary participation in the fund for:
213 (A) an above ground petroleum storage tank; and

214 (B) a tank:
215 (I) exempt from regulation under 40 C.F.R., Part 280, Subpart (B); and
216 (II) specified in Section 19-6-415 ; and
217 [(vi)] (vii) certification of an underground storage tank consultant including:
218 (A) a minimum education or experience requirement; and
219 (B) a recognition of the educational requirement of a professional engineer licensed
220 under Title 58, Chapter 22, Professional Engineers and Professional Land Surveyors Licensing
221 Act, as meeting the education requirement for certification;
222 (b) adopt the requirements for an underground storage tank contained in:
223 (i) the Solid Waste Disposal Act, Subchapter IX, 42 U.S.C. Sec. 6991, et seq., as may
224 be amended in the future; and
225 (ii) an applicable federal requirement authorized by the federal law referenced in
226 Subsection (1)(b)(i); and
227 (c) comply with the requirements of the Solid Waste Disposal Act, Subchapter IX, 42
228 U.S.C. Sec. 6991c, et seq., as may be amended in the future, for the state's assumption of
229 primacy in the regulation of an underground storage tank; and
230 (2) applying the provisions of this part.
231 Section 3. Section 19-6-405.3 is amended to read:
232 19-6-405.3. Creation of Petroleum Storage Tank Loan Fund -- Purposes -- Loan
233 eligibility -- Loan restrictions -- Rulemaking.
234 (1) There is created a revolving loan fund known as the Petroleum Storage Tank Loan
235 Fund.
236 (2) The sources of money for the loan fund are:
237 (a) appropriations to the loan fund;
238 (b) principal and interest received from the repayment of loans made by the executive
239 secretary under Subsection (3); and
240 (c) all investment income derived from money in the fund.
241 (3) The executive secretary may loan, in accordance with this section, money available
242 in the loan fund to a person to be used for:
243 (a) upgrading a petroleum storage tank;
244 (b) replacing an underground storage tank; or

245 (c) permanently closing an underground storage tank.
246 (4) A person may apply to the executive secretary for a loan under Subsection (3) if all
247 tanks owned or operated by that person are in substantial compliance with all state and federal
248 requirements or will be brought into substantial compliance using money from the loan fund.
249 (5) The executive secretary shall consider loan applications under Subsection (4) to
250 meet the following objectives:
251 (a) support availability of gasoline in rural parts of the state;
252 (b) support small businesses; and
253 (c) reduce the threat of a petroleum release endangering the environment.
254 (6) (a) [Loans] A loan made under this section may not be for more than:
255 [(a) be for more than] (i) $150,000 for all tanks at any one facility;
256 [(b) be for more than] (ii) $50,000 per tank; and
257 [(c) be for more than] (iii) 80% of the total cost of:
258 [(i)] (A) upgrading a tank;
259 [(ii)] (B) replacing the underground storage tank; or
260 [(iii)] (C) permanently closing the underground storage tank[;].
261 (b) A loan made under this section shall:
262 [(d)] (i) have a fixed annual interest rate of 3%;
263 [(e)] (ii) have a term no longer than 10 years;
264 [(f)] (iii) be made on the condition the loan applicant obtains adequate security for the
265 loan as established by board rule under Subsection (7); and
266 [(g)] (iv) comply with rules made by the board under Subsection (7) .
267 (7) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
268 board shall make rules establishing:
269 (a) form, content, and procedure for a loan application;
270 (b) criteria and procedures for prioritizing a loan application;
271 (c) requirements and procedures for securing a loan;
272 (d) procedures for making a loan;
273 (e) procedures for administering and ensuring repayment of a loan, including late
274 payment penalties; and
275 (f) procedures for recovering on a defaulted loan.

276 (8) A decision by the executive secretary to loan money from the loan fund and
277 otherwise administer the loan fund is not subject to Title 63G, Chapter 4, Administrative
278 Procedures Act.
279 (9) The Legislature shall appropriate money from the loan fund to the department for
280 the administration of the loan fund.
281 (10) The executive secretary may enter into an agreement with a public entity or
282 private organization to perform a task associated with administration of the loan fund.
283 Section 4. Section 19-6-411 is amended to read:
284 19-6-411. Petroleum storage tank fee for program participants.
285 (1) In addition to the underground storage tank registration fee paid in Section
286 19-6-408 , the owner or operator of a petroleum storage tank who elects to participate in the
287 environmental assurance program under Section 19-6-410.5 shall also pay an annual petroleum
288 storage tank fee to the department for each facility as follows:
289 [(a) on and after July 1, 1990, through June 30, 1993, an annual fee of:]
290 [(i) $250 for each tank:]
291 [(A) located at a facility engaged in petroleum production, refining, or marketing; or]
292 [(B) with an annual monthly throughput of more than 10,000 gallons; and]
293 [(ii) $125 for each tank:]
294 [(A) not located at a facility engaged in petroleum production, refining, or marketing;
295 and]
296 [(B) with an annual monthly throughput of 10,000 gallons or less;]
297 [(b) on and after July 1, 1993, through June 30, 1994, an annual fee of:]
298 [(i) $150 for each tank:]
299 [(A) located at a facility engaged in petroleum production, refining, or marketing; or]
300 [(B) with an average monthly throughput of more than 10,000 gallons; and]
301 [(ii) $75 for each tank:]
302 [(A) not located at a facility engaged in petroleum production, refining, or marketing;
303 and]
304 [(B) with an average monthly throughput of 10,000 gallons or less; and]
305 [(c)] (a) [on and after July 1, 1994,] an annual fee of:
306 (i) $50 for each tank in a facility with an annual facility throughput rate of 400,000

307 gallons or less;
308 (ii) $150 for each tank in a facility with an annual facility throughput rate of more than
309 400,000 gallons; and
310 (iii) $150 for each tank in a facility regarding which:
311 (A) the facility's throughput rate is not reported to the department within 30 days after
312 the date this throughput information is requested by the department; or
313 (B) the owner or operator elects to pay the fee under this [subsection] Subsection
314 (1)(a)(iii), rather than report under Subsection (1)[(c)](a)(i) or (ii); and
315 [(d)] (b) [on and after July 1, 1998,] for any new tank:
316 (i) which is installed to replace an existing tank at an existing facility, any annual
317 petroleum storage tank fee paid for the current fiscal year for the existing tank is applicable to
318 the new tank; and
319 (ii) installed at a new facility or at an existing facility, which is not a replacement for
320 another existing tank, the fees are as provided in Subsection (1)[(c)](a) of this section.
321 (2) (a) As a condition of receiving a permit and being eligible for benefits under
322 Section 19-6-419 from the Petroleum Storage Tank Trust Fund, each underground storage tank
323 installation company shall pay to the department the following fees to be deposited in the fund:
324 (i) an annual fee of:
325 (A) $2,000 per underground storage tank installation company if the installation
326 company has installed 15 or fewer underground storage tanks within the 12 months preceding
327 the fee due date; or
328 (B) $4,000 per underground storage tank installation company if the installation
329 company has installed 16 or more underground storage tanks within the 12 months preceding
330 the fee due date; and
331 (ii) $200 for each underground storage tank installed in the state, to be paid prior to
332 completion of installation.
333 (b) The board shall make rules specifying which portions of an underground storage
334 tank installation shall be subject to the permitting fees when less than a full underground
335 storage tank system is installed.
336 (3) (a) Fees under Subsection (1) are due on or before July 1 annually.
337 (b) If the department does not receive the fee on or before July 1, the department shall

338 impose a late penalty of $60 per facility.
339 (c) (i) The fee and the late penalty accrue interest at 12% per annum.
340 (ii) If the fee, the late penalty, and all accrued interest are not received by the
341 department within 60 days after July 1, the eligibility of the owner or operator to receive
342 payments for claims against the fund lapses on the 61st day after July 1.
343 (iii) In order for the owner or operator to reinstate eligibility to receive payments for
344 claims against the fund, the owner or operator shall meet the requirements of Subsection
345 19-6-428 (3).
346 (4) (a) (i) Fees under Subsection (2)(a)(i) are due on or before July 1 annually. If the
347 department does not receive the fees on or before July 1, the department shall impose a late
348 penalty of $60 per installation company. The fee and the late penalty accrue interest at 12% per
349 annum.
350 (ii) If the fee, late penalty, and all accrued interest due are not received by the
351 department within 60 days after July 1, the underground storage tank installation company's
352 permit and eligibility to receive payments for claims against the fund lapse on the 61st day after
353 July 1.
354 (b) (i) Fees under Subsection (2)(a)(ii) are due prior to completion of installation. If
355 the department does not receive the fees prior to completion of installation, the department
356 shall impose a late penalty of $60 per facility. The fee and the late penalty accrue interest at
357 12% per annum.
358 (ii) If the fee, late penalty, and all accrued interest are not received by the department
359 within 60 days after the underground storage tank installation is completed, eligibility to
360 receive payments for claims against the fund for that tank lapse on the 61st day after the tank
361 installation is completed.
362 (c) The executive secretary may not reissue the underground storage tank installation
363 company permit until the fee, late penalty, and all accrued interest are received by the
364 department.
365 (5) If the state risk manager determines the fees established in Subsections (1) and (2)
366 and the environmental assurance fee established in Section 19-6-410.5 are insufficient to
367 maintain the fund on an actuarially sound basis, he shall petition the Legislature to increase the
368 petroleum storage tank and underground storage tank installation company permit fees, and the

369 environmental assurance fee to a level that will sustain the fund on an actuarially sound basis.
370 (6) The executive secretary may waive all or part of the fees required to be paid on or
371 before May 5, 1997, for a petroleum storage tank under this section if no fuel has been
372 dispensed from the tank on or after July 1, 1991.
373 (7) (a) [Each] The executive secretary shall issue a certificate of compliance to the
374 owner or operator of a petroleum storage tank or underground storage tank, for which payment
375 of fees has been made and other requirements have been met to qualify for a certificate of
376 compliance under this part[, shall be issued a form of identification, as determined by the board
377 under Subsection (7)(b)].
378 (b) The board shall make rules providing for the identification, through a tag or other
379 readily identifiable method, of a petroleum storage [tanks] tank or underground storage [tanks]
380 tank under Subsection (7)(a) that does not qualify for a certificate of compliance under this
381 part.




Legislative Review Note
as of 2-6-12 10:34 AM

Office of Legislative Research and General Counsel